To begin with, it is an oversimplification (and an inaccurate one) for Van Ella to suggest that the methodology prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993) necessarily applies across the board to all opinion testimony potentially admissible under Fed. R. Evid. ("Rule") 702--that is, to the possessors of "technical" or of "other specialized knowledge" as well as to witnesses having "scientific" knowledge. Both Daubert itself ( id. at 589-90 & n.8) and common sense teach that not all of the considerations that are identified in Daubert for trial judges' exercise of their gatekeeping function automatically extend beyond the realm of "science" (a term that itself has considerable breadth--see, e.g., Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996)).

But this Court still has a comparable (though not identical) gatekeeping function with respect to the other categories of "expert" (that is, opinion) testimony that are embraced within Rule 702. And the application of the relevant criteria to Berlin's proposed testimony certainly permits him to state what he did by way of investigation and, based on his own experience, to state his opinion that Van Ella could have done the same. It is also appropriate for Berlin, if this indeed constitutes his opinion derived from his own experience, that Van Ella could not effectively have conducted such an investigation for the low price that it charged to First Continental.

On the other hand, Kay's effort to elevate Berlin to expert status such as would enable him to offer opinion testimony as to industry standards, or otherwise to report on random conversations that he has had with colleagues, for example, must be rejected. Rule 703, which enables experts' opinions to be based upon facts or data that need not themselves be admissible in evidence, creates an obvious potential for the use of such opinions as a vehicle for creating a "back door" hearsay exception.
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And that danger is particularly present with opinions of the type that Berlin has expressed in his report and on which he was examined in his deposition. In that respect a balancing approach, like that contained in Rule 403 for dealing with admissible evidence, may also serve as a useful vehicle for the exercise of the court's gatekeeping role as it would apply to limiting the injection of inadmissible evidence into a trial under the auspices of Rule 703.

That aspect of Moffitt's opinion is not at all grounded in the type of foundation that can suffice to support its admissibility. Moreover, it must be recognized that a witness' justifiable patina, which may be conferred by his or her status as an expert in some acknowledged field of expertise, poses a special danger that the trier of fact may extend a comparable credence to the witness' opinions that fall outside of that area of expertise. That risk is especially high where, in the case of complex or extensive formulas, tables or other mathematical presentations by a statistician, the corollary ungrounded opinions are given a deceptive and unjustified appearance of precision. That type of hazard creates a prime prospect for an adverse ruling under Rule 403 balancing.
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Next, Moffitt's opinion and his calculations based on the premise that the Van Ella and First Continental conduct caused Kay to lose the benefit of a 5 to 7.5 year career as a trader is likewise tendered without proper support. In that respect Kay R. Mem. 7 advances this bogus argument:

In the first instance, First Continental has waived this argument when its own expert issued a report which calculated an earnings stream of 17 years.

In fact First Continental's expert witness Robert MacLaverty plainly made his own calculations on a defensive worst-case scenario that projected Kay's continued employment until his presumed retirement at age 65: At the same time and on the very same page, MacLaverty's report expressly made the point that:

But most importantly, the MacLaverty calculations over such an extended period have expressly taken into account (as Moffitt's calculations have not) the conditional probabilities (or improbabilities) of Kay's continued future employment. Thus the farther out a projection may go, the deeper the discount that is required--something that takes care of the concept of a statistically valid opinion as to assertedly lost future earnings. By contrast, the only discount that Moffitt included within his calculations is one that reduces to present value at a T-bill rate what he has treated as a risk-free period during which Kay would have derived the calculated future earnings.

What Moffitt has done is to present his own speculative numbers without having tempered them in any way to account for their "iffy" nature. Those deficiencies involve a fundamental flaw that causes the overall Moffitt opinion to be the Rule 702 equivalent of what in early computer vocabulary bore the label "GIGO" ("garbage in, garbage out"). Neither Moffitt's report nor his deposition testimony has explained (nor has Kay's memorandum in opposition to the motions in limine explained) why his model is totally lacking in a critical validation element in every such calculation: accountability for the risks involved. That is a subject to which our Court of Appeals' Chief Judge Richard Posner has paid particular and repeated heed (see, e.g., Price v. Marshall Erdman & Assocs., Inc., 966 F.2d 320, 326-27 (7th Cir. 1992)). It is perhaps surprising, but it is nonetheless true, that someone with Moffitt's stated credentials has pursued a fatally defective methodology in generating his opinion.
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What has been said here really taints Moffitt's opinion in its entirety. Moffitt has not even made a pass at taking into account the risks necessarily inherent in a projection of assertedly lost future earnings, instead treating Kay as though he had been wrongfully deprived of a firm and binding term contract of between 5 and 7.5 years.
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And that gaping omission is not simply a matter that affects the weight of the proffered evidence as an issue to be decided by the factfinder--a treatment that would leave it to the factfinder to value or devalue the opinion without being given any criteria for doing so.

Instead the opinion is truly a caricature of a legitimate damages calculation, rendered doubly problematic (1) because a portion of the calculations does involve the legitimate practice of the statistician's art, thereby potentially causing the more significant and illegitimate portion to be impermissibly persuasive to the untrained reader or listener, and (2) because the deceptive appearance of precision that is created by the complex calculations enhances the risk that lay factfinders may swallow the bogus conclusions that Moffitt espouses. Though the art or science (take your choice) of statistics has evolved considerably during the intervening three-quarters of a century, what Kay and Moffitt have tendered remains evocative of Mark Twain's sardonic comment in his 1924 Autobiography :

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